Court Rulings Blur the Line Between a Spy and a LeakerBy ADAM LIPTAKPublished: August 2, 2013 336 Comments

WASHINGTON — The federal government is prosecuting leakers at a brisk clip and on novel theories. It is collecting information from and about journalists, calling one a criminal and threatening another with jail. In its failed effort to persuade Russia to return another leaker, Edward J. Snowden, it felt compelled to say that he would not be tortured or executed.

These developments are rapidly revising the conventional view of the role of the First Amendment in national security cases. The scale of disclosures made possible by digital media, the government’s vast surveillance apparatus and the rise of unorthodox publishers like WikiLeaks have unsettled time-honored understandings of the role of mass media in American democracy.

This is so even where the government was the nominal loser. Consider the case of Pfc. Bradley Manning, who dodged a legal bullet on Tuesday, winning an acquittal on the most serious charge against him: that releasing government secrets to the public amounted to “aiding the enemy.”

But a dodged bullet is still a bullet.

The military judge in Private Manning’s case ruled last year that there was no First Amendment problem with the government’s legal theory. Providing classified information for mass distribution, she said, is a sort of treason if the government can prove the defendant knew “he was giving intelligence to the enemy” by “indirect means.”

The verdict thus means only that military prosecutors did not prove their case. The legal theory stands, and it troubles even usual critics of unauthorized disclosures of government secrets.

“It blurs the distinction between leakers and spies,” said Gabriel Schoenfeld, the author of “Necessary Secrets: National Security, the Media, and the Rule of Law.” He said the government might have lost a battle but made headway in a larger war by “raising the charge and making it seem plausible.”

Something similar happened in 1971, when President Richard M. Nixon failed to stop the publication of the Pentagon Papers, a secret history of the Vietnam War. The Supreme Court’s ruling allowing The New York Times and The Washington Post to publish the papers is often said to be a high-water mark in the annals of press freedom.

But like the Manning verdict, the decision represented a shift in the understanding of the First Amendment.

“The American press was freer before it won its battle with the government,” Alexander Bickel, the Yale law professor who represented The Times in the case, wrote in his classic 1975 book, “The Morality of Consent.”

“Through the troubles of 1798, through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint,” Professor Bickel wrote. “That spell was broken, and in a sense, freedom was thus diminished.”

Worse, from the perspective of the news media, the victory in the Pentagon Papers case was distinctly limited and helped shape the Manning prosecution.

“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams, who also represented The Times in the case, wrote in a new book, “Friend of the Court.”

According to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused. A grand jury was then convened in Boston, but it did not issue an indictment.

The “aiding the enemy” charge in the Manning case was based on military law, and it is not directly applicable to leakers in other parts of the government or to reporters and publishers. But the theory on which it was based has echoes in the more general espionage laws.

Until recently, its leading proponent was Nixon, who mused on the matter in a meeting in the Oval Office the day after The Times published the first installment of its reports on the Pentagon Papers.

“That’s treasonable,” he said to an aide, “due to the fact that it’s aid to the enemy and it’s a release of classified documents.”

In “Fighting for the Press,” a new book about the case, James C. Goodale, who was general counsel of The New York Times Company at the time, said President Obama has followed in Nixon’s footsteps.

“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”

But John Yoo, a law professor at the University of California, Berkeley, and a former Bush administration lawyer, said that distinction broke down in the Manning case because he did not make his disclosures directly to the establishment press.

“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.

“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.” =======================

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In June, David Gregory asked Glenn Greenwald a question in a similar vein on NBC’s “Meet the Press.” Mr. Greenwald had written articles on government surveillance programs for The Guardian based on materials from Mr. Snowden, a former National Security Agency contractor.

“To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” Mr. Gregory asked.

Mr. Greenwald responded, “If you want to embrace that theory, it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal.”

The Obama administration seemed to adopt that view in seeking a court order to examine the e-mails of James Rosen of Fox News. The administration’s lawyers said there was “probable cause to believe” that Mr. Rosen was “at the very least” an “an aider and abettor and/or co-conspirator” in violations of the espionage laws.

New Justice Department guidelines, partly a reaction to the furor over the Rosen matter, say the department will not treat “ordinary news-gathering activities” as criminal conduct. But the guidelines do not define those activities.

Last month, a federal appeals court agreed with the Justice Department that James Risen, an author and New York Times reporter, must testify in a prosecution under the espionage laws or face contempt charges.

To date, there have been no prosecutions of journalists in the United States for seeking or publishing classified information. But two lobbyists with the American Israel Public Affairs Committee, Steven J. Rosen and Keith Weissman, were charged in 2005 with violating the espionage laws for conduct they said was functionally equivalent to journalism: they had learned government secrets and passed them along to others.

As in the Manning case, the firewall turned out not to be the First Amendment but the difficulty of proving intent. After Judge T. S. Ellis of Federal District Court in Alexandria, Va., ruled that the government had to show the defendants knew their conduct would hurt the United States, prosecutors dropped the charges.

But Judge Ellis had a larger message, too. He said the case “exposes the inherent tension between the government transparency so essential to a democratic society and the government’s equally compelling need to protect from disclosure information that could be used by those who wish this nation harm.”

“The rights protected by the First Amendment,” he added, “must at times yield to the need for national security.”

Though there are points of merit or interest in this editorial, IMHO what it misses is a lot.

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Edward Snowden must be smiling. Fresh from gaining asylum from Vladimir Putin, the self-admitted stealer of U.S. security secrets can now boast that he has caused an American President to retreat on his core powers as Commander in Chief.

That's the import of President Obama's announcement late Friday, before he left for Martha's Vineyard, that he wants to overhaul the intelligence and data collection programs he inherited from George W. Bush and has used since he took office. Mr. Obama invited Congress to tie him and future Presidents down with new oversight and limits on a surveillance program that no one has found to have been abused in a single instance.***

Mr. Obama's overture is dangerous politically and as policy. A President should explain to the American people why these programs are necessary against a terrorist threat that is far from defeated. As Mr. Obama spoke, the U.S. still had 19 embassies or consulates closed around the world for fear against a terror attack. While most have since been reopened, the uses of surveillance in warning of the potential attack would seem to be clear. Surveillance saves American lives.

(Not that we should know this, but the embassy closings were based upon listening in on a conference call of the much of the AQ team, not saving and reading Americans' mail)

Yet Mr. Obama has now joined the debate on his backfoot, conceding that new bureaucratic intrusions are needed to interfere and limit his own war fighters. "It's not enough for me, as President, to have confidence in these programs. The American people need to have confidence in them as well," Mr. Obama said. Well, yes, but a President's job is to give them that confidence, not to undermine that confidence at the start by saying the critics are right.

The President compounded the retreat by saying he wants a new adversarial advocate added to the current surveillance review done by the Foreign Intelligence Surveillance Court, or FISC. Even if the advocate's mandate is supposedly only for "privacy," this is a bad idea.

The President is essentially inviting into his councils someone whose duty is to oppose surveillance requests that are presumably necessary for security. But this is not a debate over whether to introduce New Coke in which you might need a devil's advocate. This is bringing in someone whose only job is to say no, and without responsibility for the consequences.

Such an advocate compounds the problems with the FISC, which is already a judicial intrusion on the executive that diffuses political accountability. This problem was predicted when Jimmy Carter created the FISC process during the last political panic over intelligence, in the 1970s.

Laurence Silberman, a former deputy Attorney General who is now a federal judge, warned in Congressional testimony in 1978 after having inspected the files of J. Edgar Hoover and others that "I am convinced that the single most important deterrent to executive branch malfeasance is the prospect of subsequent disclosure." The introduction of judicial approval into such war powers as surveillance for national security, he said by contrast, makes the executive less accountable because it offers an excuse for bad decisions or abuse: The judges said it was OK.

This is precisely what we have seen in the wake of Mr. Snowden's betrayals, with leaks and liberals blaming the FISC for being too much of a rubber stamp and even blaming Chief Justice John Roberts for naming too many Republicans and prosecutors to the FISC. So the same liberals who created the FISC as a cure-all now blame it for not constraining the President enough. Mr. Obama is also dodging responsibility by now proposing a fix for the FISC, in large part as a way to shield himself from liberal criticism.

Some of us warned in the 1970s, and have warned since, that such an executive branch role for the judiciary violated the Constitution's separation of powers and would lead to precisely such political complications. We even hear complaints now from the left and libertarian right that the FISC's proceedings are secret. No kidding.

These pages warned about that in the 1970s as well. "The element of judicial secrecy is particularly troubling," wrote Robert Bork, the distinguished legal scholar, in a March 9, 1978 Journal op-ed. "It would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. Whatever that may be called, it debases an important idea to term it the rule of law; it is more like the uninformed, unknown and uncontrolled exercise of discretion." We can now add the secrecy complaint about one of its own creations to the list of reasons that the New York Times owes the late Judge Bork an apology.

As an unelected branch of government, the judiciary derives its authority in part because it holds proceedings and settles most disputes in plain public view. Rather than let the judiciary get further embroiled in the political branches, Chief Justice Roberts would help the credibility of judges and courts if he said the judiciary will not support any such rewrite of the FISC and would prefer to end its current participation.***

Not that Mr. Obama's pre-emptive FISC concession will appease the anti-antiterror left and right. They're already pocketing this offer and calling it inadequate. This is because their real goal is to build in so many caveats and burdens on surveillance that it will cease to be a useful antiterror tool.

It's hard to believe a President as politically attuned as Mr. Obama doesn't understand this. He certainly knows how to resist Congressional pressure when he wants to. Yet the passion and argument he brings to bear on domestic issues seems to vanish when he addresses national security.

It's enough to make us wonder if he is reverting in his second term to the Senator who became the darling of the left to outflank Hillary Clinton and win the Democratic nomination. Perhaps the real Barack Obama isn't the President of the first term who used the Bush antiterror policies to pound al Qaeda. Maybe he really believes that he is the only President who can be trusted with such security powers, and so now he is going to use the controversy inspired by Mr. Snowden to hamstring his successors.

Especially if that is true, but even if he is merely trying to appease his left wing, wiser figures in both parties in Congress will need to protect the office of the Presidency and the country from his security retreat.

Arguments that terror prosecutions are criminalizing protected speech took another hit Wednesday, when the First Circuit Court of Appeals upheld terror-support convictions against Tarek Mehanna.

Mehanna is serving 17½ years in prison after a Boston jury convicted him in 2011 of conspiracy to provide material support to al-Qaida, conspiracy to commit murder abroad, providing material support to terrorists and lying to federal investigators.

Likening terrorism to a "modern-day equivalent of the bubonic plague," the First Circuit Court of Appeals found jurors had ample grounds to find Mehanna's activities crossed the line into illegal material support. The ruling by Circuit Judge Bruce M. Selya acknowledged a delicate balance between "vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association."

But the evidence supports the verdict and Mehanna's sentence because his work was done in coordination with al-Qaida in an attempt to benefit the terrorist group.The appellate court at times took a dismissive tone in addressing Mehanna's arguments to overturn his conviction. Some were cast aside as "meritless," while others were described as "convoluted theories" and "fishing in an empty stream."

Arguments offered in amicus, or friend of the court, briefs by Mehanna supporters including the American Civil Liberties Union (ACLU) also found little traction. In many cases, the external briefs raised issues Mehanna had not. "The law is settled that amici cannot ordinarily introduce into a case issues not briefed and argued by the appellant," the ruling said.

Mehanna's case drew sympathy from Islamist groups and others. ACLU Massachusetts Executive Director Nancy Murray wrote after the conviction that Mehanna's case proved that, "There is a Muslim exception to the First Amendment," and that Muslims were being prosecuted for "thought crime."

The Council on American-Islamic Relations (CAIR) Chicago chapter offered a similar claim, publishing an intern's article which cast Mehanna as a victim of overzealous FBI surveillance because he is a Muslim. The Muslim Public Affairs Council (MPAC) reposted a Guardian article on its Facebook and Twitter accounts titled, "Tarek Mehanna: Punished for Speaking Truth to Power."

But the appellate court stood by the jury's verdict in rejecting such arguments.

Mehanna came under investigation in 2006. By then, he already had traveled to Yemen in hopes of reaching a terrorist training camp. When that didn't work, he returned to Sudbury, Mass., where he began translating and posting material supporting al-Qaida and "Salafi-Jihadi perspectives," the court wrote.

Jihad may have violent and non-violent interpretations, the court noted, but "the record makes clear that the defendant used the term to refer to violent jihad — and that is the meaning that we ascribe to it throughout this opinion."

Evidence showed Mehanna's work was "in response to Al-Qa'ida's call," prosecutors wrote, "and that he was pleased to be associated with Al-Qa'ida through his work."

Mehanna's supporters rejected the appellate ruling just as they rejected the verdict. "The fundamental problem with the [appellate] ruling is that it allows the government to prosecute unpopular political speech," ACLU attorney Alex Abdo told the Boston Globe.

The argument that Mehanna merely engaged in protected speech can only be accepted by "looking at the evidence through rose-colored glasses..." the court ruled. "His coconspirators testified that [Mehanna] persistently stated his belief that engaging in jihad was 'a duty upon a Muslim if he's capable of performing it,' and that this duty included committing violence. The evidence further showed that, following United States intervention in Iraq, the defendant concluded 'that America was at war with Islam,' and saw American 'soldiers as being valid targets.'"

This case marks at least the third significant prosecution in which appellate courts dismissed claims by defendants and their allies that free speech was being criminalized. In the case of the Humanitarian Law Project, the U.S. Supreme Court found that free speech rights don't apply when the speech is used in coordination with a terrorist group to provide a service. The Fifth Circuit Court of Appeals similarly found that speech was used to show the defendant's intent to help a known terrorist group in a case involving Hamas support.

Mehanna's attorneys also argued that jurors were unduly influenced by graphic videos and accounts of al-Qaida attacks. The court acknowledged that there is no clear formula to balance the prosecution's need to show the defendant's awareness and intent against "piling on" in a way that prejudices the jury. The trial judge had witnesses describe some of the more graphic imagery rather than show it to jurors, and "evinced a keen awareness of the First Amendment issues" in his rulings and jury instructions, the appellate court ruled.

The material was relevant, however, because Mehanna was "inspired by terrorist rants, developed an anti-American animus, which culminated in his decision to travel to Yemen to join in al-Qa'ida's struggle." And Mehanna claimed that his beliefs precluded him from attacking Americans anywhere. Prosecutors could use the al-Qaida videos and Internet material to show that wasn't true, the court ruled.

"It should not surprise a defendant that proof of his participation in conspiracies to provide material support to terrorist organizations and to kill Americans here and abroad will engender the presentation of evidence offensive to the sensibilities of civilized people...," the ruling said. "Terrorism trials are not to be confused with high tea at Buckingham Palace."

LONDON — The letter informing Mohamed Sakr that he had been stripped of his British citizenship arrived at his family’s house in London in September 2010. Mr. Sakr, born and raised here by British-Egyptian parents, was in Somalia at the time and was suspected by Western intelligence agencies of being a senior figure in the Shabab, a terrorist group linked to Al Qaeda.

Seventeen months later, an American drone streaked out of the sky in the Lower Shabelle region of Somalia and killed Mr. Sakr. An intelligence official quoted in news reports called him a “very senior Egyptian,” though he never held an Egyptian passport. A childhood friend of Mr. Sakr, Bilal al-Berjawi, a Lebanese-Briton also stripped of his citizenship by the British government, was killed in a drone strike a month earlier, after having escaped an attack in June 2011.

Senior American and British officials said there was no link between the British government’s decision to strip the men of their citizenship and the subsequent drone strikes against them, though they said the same intelligence may have led to both actions.

But the sequence of events effectively allowed the British authorities to sidestep questions about due process under British law, mirroring the debate in the United States over the rights of American citizens who are deemed terrorist threats. The United States and Britain have a long history of intelligence sharing and cooperation in fighting terrorist threats.

The cases of Mr. Sakr and Mr. Berjawi are among the most significant relating to the British government’s growing use of its ability to strip citizenship and its associated rights from some Britons at the stroke of a pen, without any public hearing and with only after-the-fact involvement by the courts.

Now, faced with concerns that the steady stream of British Muslims traveling to fight in Syria could pose a threat on their return, Prime Minister David Cameron’s government is pushing legislation that would give it additional flexibility to use the power, which among other things keeps terrorism suspects from re-entering the country.

In many Western countries, including the United States, citizenship is considered a right that cannot be taken away except in very limited cases, such as serving in another nation’s military or having obtained citizenship fraudulently. Others strip citizenship from people who take another passport. Britain, along with Israel, is one of the few countries that can revoke the citizenship of dual nationals — even if they are native born — if they are suspected or convicted of terrorist offenses or acts of disloyalty.

Britain is seeking to expand the practice to naturalized citizens who have no other nationality and would be rendered stateless. Citizenship, in the words of Home Secretary Theresa May, is a “privilege, not a right.”

The issue is beginning to stir public debate. A government-sponsored amendment expanding the practice to naturalized citizens who have no other nationality sailed through the House of Commons this year. But on Monday, in a rare act of parliamentary rebellion, the House of Lords rejected the amendment and asked instead for a joint committee of both houses to examine whether the additional powers are necessary. The draft legislation will now return to the House of Commons.Continue reading the main story

Britain typically strips people of citizenship when they are outside the country. The procedure requires only that the home secretary find that stripping someone of citizenship would be “conducive to the public good,” then sign a deprivation order and send a letter to the person’s last known address. Loss of citizenship is effective immediately. It can be challenged in court, but that is a difficult task in most cases, given the inability of a targeted person to return to Britain for any proceedings.

“Deprivation can help disrupt the terrorist threat,” John Taylor, the junior minister for criminal information, said in a recent parliamentary debate. Mr. Taylor said the government refused to be “at the whim of other countries’ nationality laws” or the view of a court.

Other countries are watching closely. A Canadian bill giving the government some deprivation powers is now before Parliament. Australia and the Netherlands are considering drafting legislation.

In Britain, there is some unease at the implications.

Mr. Sakr, who was killed in February 2012, had appealed on the grounds that the British government was rendering him stateless. He had never sought an Egyptian passport despite being eligible for one because of his parents’ heritage. He eventually abandoned his appeal for fear that frequent communication with his lawyer on a cellphone or computer would make him vulnerable to a drone strike by giving away his location, according to his lawyer at the time, Saghir Hussain.

Mr. Berjawi was killed in January 2012, hours after using a cellphone to call his wife in a London hospital on the day their son was born.

In a case involving the United States, a Somali-born Briton, Mahdi Hashi, was stripped of his British citizenship in June 2012 and captured and detained on an American base in Djibouti two months later. He was taken to the United States, where he awaits trial on terrorism-related charges.

“The sequence of events does not look accidental,” said Mr. Hussain, who is also representing Mr. Hashi in a separate appeal against his deprivation order.

Forty-two people have been stripped of their British citizenship since 2006, 20 of them last year, according to a freedom of information request filed by the Bureau of Investigative Journalism, a research organization at City University London that first drew attention to the practice in December 2012. In Israel, by comparison, the power to revoke citizenship has been used only twice since 2000, according to the Interior Ministry there.

*Those advocating or applauding the actions of the British Government, in contravention of their Human Rights treaty obligations, assume that...*You are not owed the right to remain a citizen if you plot against your home country. It is that simple. A country has the right to...*Anyone who conspires with violent terrorists has already disowned the essential structure of Western democracies. They deserve to lose...

Mr. Cameron’s government, in power since 2010, has stripped more people of their citizenship than all the other British governments since World War II combined, said Matthew J. Gibney, an expert on citizenship at the University of Oxford.

During World War I, anti-German sentiment and concern over foreign spies first made citizenship deprivation a popular tool both here and in the United States.

The practice fell into disuse after World War II, when it became associated with totalitarian regimes like Nazi Germany. A landmark ruling by the United States Supreme Court in 1958 struck down a law that allowed citizenship deprivation as a punishment. Proposed legislation in Congress in 2010 to reinstate the practice did not win enough support.

In Britain, the power remained on the books but was little used until after the attacks of Sept. 11, 2001. Powers have been gradually expanded since then.

The most significant expansion came in 2006, after the July 7, 2005, attacks on the London transportation system that killed 56 people, including four bombers. The previous standard — whether someone’s conduct was “seriously prejudicial to the vital interests” of the country — was replaced with more elastic wording that allows deprivation on the grounds that it is “conducive to the public good.”i

The 2006 legislation was shaped by the case of Abu Hamza al-Masri, a British-Egyptian cleric the government had been seeking to strip of citizenship since 2003. He was deprived of his Egyptian citizenship while his appeal against the British order was pending, forcing the British government to drop its efforts. Mr. Masri remains a British citizen, but has since been extradited to the United States to face terrorism charges.

The latest proposed amendment may also have been inspired by a specific case in which the government did not get its way.

Hilal al-Jedda, an Iraqi-born naturalized Briton, lost his British nationality in 2007 after being detained in Iraq on suspicion of smuggling explosives.

Out of 15 appeals, his is the only one to have succeeded. Britain’s Supreme Court ruled in October that Mr. Jedda could not be deprived of his British nationality because that action would make him stateless: Iraq bans dual citizenship and canceled Mr. Jedda’s passport in 2000 when he was naturalized in Britain. The British government was forced to reinstate his citizenship on Oct. 9, 2013.

But on Nov. 1, Mr. Jedda was stripped of his nationality a second time, and in January the Home Office rushed before Parliament the amendment allowing deprivation even if it results in statelessness, provided that a suspect’s citizenship is “seriously prejudicial to the vital interests of the United Kingdom.”

WASHINGTON — Attorney General Eric H. Holder Jr.’s long-awaited revisions to the Justice Department’s racial profiling rules would allow the F.B.I. to continue many, if not all, of the tactics opposed by civil rights groups, such as mapping ethnic populations and using that data to recruit informants and open investigations.

The new rules, which are in draft form, expand the definition of prohibited profiling to include not just race, but religion, national origin, gender and sexual orientation. And they increase the standards that agents must meet before considering those factors. But they do not change the way the F.B.I. uses nationality to map neighborhoods, recruit informants, or look for foreign spies, according to several current and former United States officials either involved in the policy revisions or briefed on them.

While the draft rules allow F.B.I. mapping to continue, they would eliminate the broad national security exemption that former Attorney General John Ashcroft put in place. For Mr. Holder, who has made civil rights a central issue of his five years in office, the draft rules represent a compromise between his desire to protect the rights of minorities and the concern of career national security officials that they would be hindered in their efforts to combat terrorism.

The Justice Department has been reworking the policy for nearly five years, and civil rights groups hope it will curtail some of the authority granted to the F.B.I. in the aftermath of the 9/11 terrorist attacks. Muslims, in particular, say federal agents have unfairly singled them out for investigation. The officials who described the draft rules did so on the condition of anonymity because they were not authorized to discuss them.

Mr. Holder, who officials say has been the driving force behind the rule change, gave a personal account of racial profiling on Wednesday before the National Action Network, the civil rights group founded by the Rev. Al Sharpton.

“Decades ago, the reality of racial profiling drove my father to sit down and talk with me about how, as a young black man, I should interact with the police if I was ever stopped or confronted in a way I felt was unwarranted,” he said.

Throughout the review process, however, the attorney general and his civil rights lawyers ran up against a reality: Making the F.B.I. entirely blind to nationality would fundamentally change the government’s approach to national security.

The Bush administration banned racial profiling in 2003, but that did not apply to national security investigations. Since then, the F.B.I. adopted internal rules that prohibited agents from making race or religion and nationality the “sole factor” for its investigative decisions.

Civil rights groups see that as a loophole that allows the government to collect information about Muslims without evidence of wrongdoing.

Intelligence officials see it as an essential tool. They say, for example, that an F.B.I. agent investigating the Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population and, if so, where it is.

As written, the new rules are unlikely to satisfy civil rights groups and some of the administration’s liberal allies in Congress. Senator Richard J. Durbin, Democrat of Illinois, has said the existing rules “are a license to profile.”

The Justice Department rules would also apply to the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, but it is the F.B.I. that takes the lead on most national security investigations.

Farhana Khera, the president of Muslim Advocates, said expanding the rules to cover nationality and religion would be a significant step forward. But she opposed any rule that allowed the F.B.I. to continue what it calls “domain mapping” — using census data, public records and law enforcement data to build maps of ethnic communities. Agents use this data to help assess threats and locate informants.

“It would certainly mean we have work to do,” said Ms. Khera, who was one of several rights advocates who met with Mr. Holder about the profiling rules last week. “We want an effective ban on all forms of profiling.”

Before federal agents could consider religion or other factors in their investigations under the new rules, they would need to justify it based on the urgency and totality of the threat and “the nature of the harm to be averted,” according to an official who has seen the draft.

That would not prevent agents from considering religion or nationality, but officials said the goal was to establish clear rules that made doing so rare.

Department officials were prepared to announce the new rules soon and had told Congress to expect them imminently. But recently, the White House intervened and told Mr. Holder to coordinate a larger review of racial profiling that includes the Department of Homeland Security, officials said.

That is significant because the Bush-era racial profiling rules also contained an exception for border investigations, which are overseen by the department. Hispanic advocacy groups are as opposed to that caveat as Muslims are to the exception for national security investigations.

Mr. Holder cannot tell Homeland Security what rules to follow. But he has told colleagues that he believes border agents can conduct their investigations without profiling and by following the same rules as the Justice Department, one law enforcement official said.

It is not clear how long this broader review will take, but for now it has delayed release of the Justice Department rules.

Relations between the F.B.I. and Muslims have at times been strained since the weeks after 9/11, when agents arrested dozens of Muslim men who had no ties to terrorism.

Since then, the F.B.I. has adopted new policies and invested heavily to explain them to Muslim populations. Senior agents speak at mosques and meet regularly with imams and leaders of Muslim nonprofit groups, but suspicions remain.

Internal F.B.I. documents revealed that agents used their relationship-building visits at mosques as a way to gather intelligence. Leaked training materials, which the F.B.I. quickly disavowed, described the Prophet Muhammad as a cult leader and warned that mainstream Muslims shared the same “strategic themes” as terrorists.

The draft rules would establish a program to track profiling complaints. The current process is less organized, making it difficult to track patterns in complaints or how they are resolved.

In the post-Boumediene habeas cases, the government has argued, and the habeas courts have agreed, that being part of al Qaeda or Taliban forces is, in and of itself, sufficient for AUMF detention. And that’s (at most) all the government demonstrated in Hussain — that the individual had been a part of Taliban forces. The government did not try to demonstrate that Hussain had engaged in any belligerent acts or otherwise been involved in the armed conflict against the United States.

As Justice Breyer notes, however, the Supreme Court has never actually opined on whether being a member of Taliban forces, standing alone, is sufficient for AUMF detention. Justice O’Connor’s controlling plurality opinion in the leading case, Hamdi v. Rumsfeld, held only that the AUMF authorized military detention of (in her words) “an individual who . . . was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there” (emphasis added).

WASHINGTON — I BELIEVE that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. I can’t imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person’s views concerning the extrajudicial killing of American citizens.

But President Obama is seeking to do just that. He has nominated David J. Barron, a Harvard law professor and a former acting assistant attorney general, to a seat on the United States Court of Appeals for the First Circuit.

While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people.

On April 30, I wrote to the Senate majority leader, Harry Reid, urging him to delay this nomination, pending a court-ordered disclosure of the first memo I knew about. Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.” It has not been established whether Mr. Barron wrote all those memos, but we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process.

I believe that all senators should have access to all of these opinions. Furthermore, the American people deserve to see redacted versions of these memos so that they can understand the Obama administration’s legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy.

I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.

The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.

In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.

No one argues that Americans who commit treason shouldn’t be punished. The maximum penalty for treason is death. But the Constitution specifies the process necessary to convict.

Anwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue.

But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.

Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process. During World War I, our nation convicted and imprisoned Americans who voiced opposition to the war. During World War II, the government interned Japanese-Americans.

The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history.

In dropping their criminal contempt case last week against Sami Al-Arian, a member of the Palestinian Islamic Jihad's board of directors during the 1990s, prosecutors said they will seek to deport him under terms of a related 2006 plea agreement.

That may not happen anytime soon. Similar deportation cases have ended successfully, but took several years to complete. In the interim, Al-Arian is free to resume a normal life, and return to political activity, something he already started to do at pro-Muslim Brotherhood events even under terms of pre-trial release.

Nothing was happening in the contempt case, which had been frozen by U.S. District Judge Leonie Brinkema for five years as she found herself unable to grant a defense motion to dismiss and unwilling to let it proceed to trial. She offered no signs that would change. Twice, she promised a written order on the pending motions keeping the case from going to trial. It never materialized.

The contempt case grew out of Al-Arian's refusal to testify before a federal grand jury in Northern Virginia that was investigating possible terror financing by a group that helped fund Al-Arian's operations. He was given immunity for his truthful testimony, but still refused, claiming that his 2006 plea agreement to conspiring to provide services to the PIJ included a government promise that his "cooperation" with it was over.

There was no such language in his plea agreement, but he argued that the absence of a cooperation clause proved his claim. A grand jury subpoena is compelled testimony, not voluntary. And, as U.S. District Judge James Moody noted in a hearing on the matter, before his plea "Dr. Al-Arian could have been subpoenaed to testify as a witness just like anybody else in this country; right?"

The defense argument amounted to giving Al-Arian a unique exemption because he became a convicted felon. Appellate courts in the 4th and 11th circuits rejected Al-Arian's claims. He prevailed in the end by refusing to budge, an awful precedent for prosecutors trying to compel testimony from hostile witnesses.

That example grows worse if Al-Arian skirts his plea's specific language calling for his eventual deportation.

Removing stateless Palestinians is difficult, however, especially in a case involving a man who served on a terrorist group's Shura council. It requires travel documents and a country willing to accept him.

But it has been done. In 2012, Bayan and Basman Elashi were deported three years after a final order was issued against them. Both were part of Infocom, a webhosting company in Richardson Texas, connected to Hamas political leader Mousa Abu Marzook. Both were convicted of doing business with a terrorist and conspiring to violate export regulations.

The Elashi brothers made their way to Gaza by way of Egypt.

And two of Al-Arian's associates were deported to the West Bank. Sameeh Hammoudeh, a co-defendant in Al-Arian's terror support trial, was deported in 2006 under terms in a separate tax case. And Fawaz Damra, a fiery imam who raised money for the PIJ, urging that checks be written to Al-Arian's charity, was deported in 2007 after being convicted three years earlier of immigration fraud. Damra introduced Al-Arian as head of "the active arm of the Islamic Jihad Movement in Palestine" during one of their fundraisers.

The Cleveland Plain Dealer later found him selling drapes and doing some teaching in Ramallah.

Hammoudeh's was an exceptionally fast removal. The other cases took years to complete. For Al-Arian, that could mean years to take advantage of his status as a hero to American Islamists and their allies. The contempt case's dismissal was a cause for celebration among those supporters. The Muslim Public Affairs Council (MPAC), which casts itself as a moderate political organization and enjoys close ties to the White House called it "a joyous day." The Council on American-Islamic Relations (CAIR), which was created by a Muslim Brotherhood support network for Hamas in America, first offered praise to God for the case's demise. Then, Executive Director Nihad Awad followed up with a statement noting CAIR's longtime support for "Dr. Al-Arian and his family through this harrowing trial ... This is a victory for the entire community, but of course most of all the Al-Arian family."

On his Twitter feed, Awad posted a similar message in English. In Arabic, however, he wrote that Al-Arian endured "11 years of suffering because of the Israeli lobby."Journalist Glenn Greenwald, recipient of tens of thousands of secret NSA files stolen by Edward Snowden, called the case "One of the worst post-9/11 persecutions."None of these happy supporters acknowledged Al-Arian's documented role on the PIJ board. Wiretaps showed that he spent the bulk of 1994 arguing with handlers in Iran to keep the PIJ from imploding. Al-Arian's commitment to violent jihad extended beyond running "the active arm of the Islamic Jihad Movement in Palestine." He used the occasion of a double-suicide bombing to write a solicitation for donations for "the jihad effort in Palestine so that operations such as these can continue."He arranged to bring Ramadan Shallah into the United States on a work visa, and then feigned shock when Shallah emerged in 1995 as the new PIJ secretary general.To supporters, however, he remains an activist and civil rights advocate. If he is deported – something he promised to help facilitate in his 2006 guilty plea and where willful obstruction could now be a separate criminal offense – those same advocates likely will decry it as an injustice.

Al-Arian was born in Kuwait and raised in Egypt. Neither is likely to want him back, especially Egypt, which waged a violent crackdown on the Muslim Brotherhood and staged mass arrests.

The United States may have options, however. Start with the Palestinian Authority, currently functioning as a unified partnership between Fatah, which dominates the West Bank, and Hamas in Gaza. The U.S. did not break relations with the PA or cut its funding when Hamas, a designated terrorist group, joined the government.Task the PA with taking Al-Arian in, either in the West Bank or Gaza. The trick would be in getting him past entry points in Egypt or Israel, but the Damra and Elashi cases are examples of previous successes. Another U.S. "ally," the Gulf emirate of Qatar, provided refuge for Hamas political leader Khaled Meshaal.

Al-Arian flouted the system by concocting an imaginary benefit allowing him to rebuff a grand jury subpoena and insisting it was real even if no one could see it. He must not be further rewarded with the comforts and privileges of life here.

As Judge Moody said in sentencing Al-Arian in 2006, "The evidence was clear in this case that you were a leader of the Palestinian Islamic Jihad. You were on the board of directors and an officer, the secretary. Directors control the actions of an organization, even the PIJ; and you were an active leader."

Right now, he's free in America. The Department of Homeland Security needs to do everything it can to send him packing.

The Tortuous Politics of 'Torture'Dianne Feinstein's vendetta against the CIA does not serve the country's national security.ByKimberley A. StrasselAug. 7, 2014 7:22 p.m. ET

Long ago, in a presidency far, far away, congressional Democrats were briefed on the CIA's post-9/11 counterterrorism efforts. They raised no objections. Now, in a presidency that seemingly never ends, the party is still torturing the nation with the political consequences.

That's the context in which to view Senate Intelligence Chairwoman Dianne Feinstein's ugly (and unnecessary) brawl with the CIA over her coming interrogation report. Democrats have for months leaked a stream of accusations against the CIA, claiming it hacked Senate computers and continues to try to hide the findings of the report. These titillating nuggets have successfully obscured the bigger point: Ms. Feinstein and her fellow Democrats—13 years on from the Twin Towers collapse—are still playing "torture" politics, albeit with increasingly worrisome results.

All this started when Nancy Pelosi claimed in 2009 that the CIA failed to brief her in 2002 about its enhanced-interrogation program. Details then flooded out, including embarrassing facts about just how repeatedly and thoroughly Democratic leaders and Intelligence committee members in both chambers had been briefed—including Mrs. Pelosi.

"Among those being briefed . . . the reaction in the room was not just approval, but encouragement," recalled former CIA Director Porter Goss in 2007. No surprise either, given that Democrats were also briefed on the success the program proved in squeezing vital information from hardened al Qaeda leaders. This is why no Democrat moved to pull funding for these operations or spoke out on the floor of Congress.Enlarge Image

None of this sat well with the party's liberal base, and Democrats saw political gain in painting President Bush as "torturer" in chief—so they became obsessed with criticizing policies they'd supported. They held hearings, demanded testimony and assailed the CIA. They drafted legislation to disclose sensitive operations. Sen. Carl Levin ordered up mountains of documents. Barack Obama made it a campaign theme in 2008, calling for a "commander in chief who has never wavered on whether or not it is acceptable for America to torture." His own Justice Department launched a criminal probe in 2009.

Ms. Feinstein's 6,200 page "torture" report is the latest escapade. She launched her investigation in 2009 after she assumed the helm of Intelligence, and well after the interrogation debate had been done to death in the public sphere. Her partisan approach quickly alienated Republicans and caused a disabling fracture in a committee that had been known for outbreaks of seriousness.

The report is reputedly so factually flawed in its findings that the interrogation program was ineffective that committee Republicans have felt compelled to ready their own rebuttal. Intelligence committee Democrats are leaking like sieves, giving the committee a new reputation as the least trustworthy shop in D.C.—no mean feat. The divisions have roiled other vital committee work—like its cybersecurity bill. All this comes at a time when the committee is under fierce pressure by both the liberal left and libertarian right to dismantle other key antiterror programs, and when it needs unity.

Democrats have long specialized in undercutting the intelligence agencies that keep them safe, yet Ms. Feinstein's "torture" vendetta comes at a moment when the intelligence community is already severely bloodied by the Snowden leaks. She demanded that the CIA humbly submit to the "torture" whipping she's administering, and that it meekly ignore the unauthorized aspects of her own investigation (like her staffers filching documents from a CIA facility). When it didn't, she responded by leveling cavalier accusations of spying misconduct, knowing that the agency, which takes its own secrecy oath seriously, would struggle to defend itself. The CIA could have handled the situation better, though it was never a fair fight.

This partisan circus has now gone so far that some Democrats are howling for the resignation of CIA Director John Brennan. The State Department has had to increase security at American embassies, fearing fallout from the report's coming release. So Democrats are willing to rip apart a front-line agency fighting against a renewed terror threat, and put Americans at risk, on behalf of a warmed-over, partisan report that rehashes a years-old debate, one that started in an attempt to give cover to Mrs. Pelosi's liberal reputation.

This is dangerous, because there doesn't seem to be anyone left to put back together a demoralized and beleaguered intelligence apparatus. Too many Republicans have been content to sit back and watch Democratic senators feud with a Democratic administration's CIA. And the president shows no interest in publicly supporting any antiterror programs, to the degree he has even thought them through. While defending Mr. Brennan, Mr. Obama managed to condemn "torture" while simultaneously lecturing Americans not to be "sanctimonious" against CIA officials doing their "job." Sort through that one.

The Feinstein report won't offer any answers. We've been here before, year after year after year.

Every week brings new reports of Muslims in America flocking to join ISIS. Those who aren’t killed in battle will eventually return to New York, to Los Angeles and to Minneapolis–Saint Paul.

And they will stop being Iraq’s problem and become our problem.

ISIS is more than just another terrorist group. It is now an Islamic State. Its followers and allied militias pledge to obey the Caliph of ISIS and reject all allegiances to other states and entities. Western ISIS recruits burn their passports to show that they are no longer citizens of those countries.

Like most Salafists, ISIS members see our system of law and government as idolatry and heresy. Fort Hood Jihadist Nidal Hasan, who recently applied to join ISIS, had earlier written that he would “renounce any oaths of allegiances that require me to support/defend any man made constitution (like the Constitution of the United States) over the commandments mandated in Islam.”

“I therefore formally renounce my oath of office as well as any other implicit or explicit oaths I have made in the past … This includes my oath of U.S. citizenship,” Hasan declared.

By his own admission, Nidal Hasan is no longer a United States citizen. He should be promptly denaturalized. So should every ISIS member and anyone who supports the Islamic State.

The oath of citizenship that Hasan was retroactively rejecting states, “I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen.”

ISIS members have pledged their allegiance to a foreign prince and a foreign state. Denaturalizing them should be a mere formality.

Anwar Al-Awlaki, Hasan’s mentor, whose American citizenship became such an issue for the left when he was killed in a drone strike, was clear in his lectures that he was at war with America, that “Muslims in the West should see their stay there as temporary” before leaving to build an Islamic State in the Middle East and that Muslims shouldn’t even vote in America because they would be participating in “a disbelieving system, in a disbelieving country.”

Like Hasan, he did not consider himself an American in any way, shape or form.

In the past the United States had denaturalized Nazis and Communists and even specifically targeted foreign agitators linked to the Nazis and Communists, denaturalized them and then deported them.

Recently Obama Inc. found the time to have two former Guatemalan soldiers accused of committing atrocities against a village linked to Communist guerrillas in the so-called Dos Erres massacre back in the 1980s stripped of their citizenship.

Other denaturalization targets under his administration included two Serbians, an Ethiopian Marxist who took part in the 70s Red Terror and a woman involved in the Rwandan genocide.

None of the denaturalized were Muslim terrorists posing a current national security threat. And yet if we are to have a strategy against ISIS, denaturalizing its members will accomplish more than air strikes.

The modern Jihadist threat had at its core a group of fighters who trained and fought in Afghanistan during and after the Soviet invasion. These fighters went on to lead terrorist groups and stage attacks. But the battlefields of the Arab Spring will produce a new wave of threats on an unprecedented scale. Muslims in the West, especially converts to Islam, who have gone to join ISIS will return with training, battlefield experience and a plan. It’s far more urgent to keep them out than to deport war criminals.

A serious ISIS strategy has to address not the flow of fighters from the United States, as Obama has proposed to do, but the flow of fighters coming into the United States. If ISIS members want to travel to fight in Iraq and Syria, they should be allowed to do so.

By joining the Islamic State, they have disavowed their allegiance to the United States. Their citizenship is now only a passport of convenience that they will burn as soon as they make their way into Syria.

It’s far more important to keep them from coming back than to keep them from leaving.

If the United States can denaturalize foreign soldiers for being part of units linked to war crimes, as it has under Obama, it has the obligation to pursue the denaturalization of anyone who chooses to affiliate with an organization such as ISIS which has committed undeniable war crimes. While the legal grounds for denaturalization won’t be the same since some of those being denaturalized did not have terrorist histories and may have even been born in the United States, the policy basis is clear.

Despite the various dubious Supreme Court attempts to strike down the denaturalization power of Congress, there are still clear standards for denaturalization. Joseph Lieberman and Scott Brown introduced the Terrorist Expatriation Act back in 2010 which would have added providing material support to terrorists as a basis for denaturalization leading to hysterical reactions on the left and the right. But such an explicit addition isn’t strictly necessary; particularly in the case of the Islamic State.

Under the Immigration and Naturalization Act anyone voluntarily “committing any act of treason”, bearing arms against the United States or plotting to conquer it will lose his citizenship. While establishing this has proven tricky in the past due to the preponderance of evidence standard, ISIS represents a clear case because its fighters travel voluntarily from the United States for that purpose and because the Islamic State’s creed explicitly repudiates citizenship in anything but the new Caliphate.

It is clearly apparent that any American citizen joining ISIS intends to abandon his citizenship. He is not only serving in a foreign army, but he is joining an organization whose very reason for existence is precluded on a rejection of states and manmade documents such as the United States Constitution.

Furthermore if Obama were to admit that the United States is at war with ISIS, its fighters would also be guilty of bearing arms against the United States. However even without this admission, ISIS has made sufficient threats and has now murdered two Americans. There is no serious doubt that we are at war.

Unlike the Taliban, some of whose American members argued that they had not originally been in conflict with the United States, ISIS originated in conflict with the United States and its creed explicitly calls for the perpetuation of conflict not only with the United States, but with the rest of the world.

The Islamic State’s founding declaration urged all the Muslims of the world to gather to it, “So rush O Muslims and gather around your Caliphate, so that you may return as you once were for ages, kings of the earth and knights of war… By Allah, if you disbelieve in democracy, secularism, nationalism, as well as all the other garbage and ideas from the west, and rush to your religion and creed, then by Allah, you will own the earth, and the east and west will submit to you.”

The Muslim fighters rushing to join ISIS hoping to be its “kings of the earth” and “knights of war” and to force the east and west to submit to it are at war with the United States. They have given their allegiance to a foreign power that promises them that they will rule over Americans.

Both attacks on the World Trade Center were carried out by terrorists who should not have been allowed into the United States. It’s time we learned the lessons of those attacks.

ISIS members and supporters like Nidal Hasan are eager to abandon their American citizenship. It’s our own government that is standing in the way.

It’s useless to bomb ISIS fighters in Iraq and Syria, if we let them march through our airports.

Logged

"You have enemies? Good. That means that you have stood up for something, sometime in your life." - Winston Churchill.

The U.S. facility in Guantanamo Bay, Cuba, currently has 149 inmates detained in connection with the U.S. war on terrorism. Agence France-Presse/Getty Images

The White House is drafting options that would allow President Barack Obama to close the detention facility in Guantanamo Bay, Cuba, by overriding a congressional ban on bringing detainees to the U.S., senior administration officials said.

Such a move would be the latest and potentially most dramatic use of executive power by the president in his second term. It would likely provoke a sharp reaction from lawmakers, who have repeatedly barred the transfer of detainees to the U.S.

The discussions underscore the president’s determination to follow through on an early campaign promise before he leaves the White House, officials said, despite the formidable domestic and international obstacles in the way.

Administration officials say Mr. Obama strongly prefers a legislative solution over going around Congress. At the same time, a senior administration official said Mr. Obama is “unwavering in his commitment” to closing the prison—which currently has 149 inmates detained in connection with the nation’s post-9/11 war on terrorism—and wants to have all potential options available on an issue he sees as part of his legacy.

The White House has sought to make executive actions a centerpiece of its policy agenda, in areas including the minimum wage, antidiscrimination rules and, potentially, immigration. House Republicans, in response, are seeking to sue Mr. Obama, saying he overstepped his legal authority in bypassing Congress.

Unilateral action “would ignite a political firestorm, even if it’s the best resolution for the Guantanamo problem,” said American University law professor Stephen Vladeck. Republicans are sure to oppose it, while Democrats could be split, he said.

White House officials have concluded Mr. Obama likely has two options for closing Guantanamo, should Congress extend the restrictions, which it could do after the midterm elections.

He could veto the annual bill setting military policy, known as the National Defense Authorization Act, in which the ban on transferring detainees to the U.S. is written. While the veto wouldn’t directly affect military funding, such a high-stakes confrontation with Congress carries significant political risks.

A second option would be for Mr. Obama to sign the bill while declaring restrictions on the transfer of Guantanamo prisoners an infringement of his powers as commander in chief, as he has done previously. Presidents of both parties have used such signing statements to clarify their understanding of legislative measures or put Congress on notice that they wouldn’t comply with provisions they consider infringements of executive power.

The core obstacle standing in the White House’s way is Congress’s move in 2010 to ban the transfer of Guantanamo detainees to the U.S. That legislation was passed after the administration sparked a backlash when it proposed relocating detainees to a maximum-security prison in Thomson, Ill.

The administration hopes to tamp down controversy by reducing the inmate population by at least half through quickly transferring Guantanamo detainees cleared for release.

On Thursday, Estonia, which Mr. Obama visited last month, announced it would accept one detainee. Officials said additional transfers are in the works.

“We are very pleased with the support from our friends and allies, and we are very grateful to them,” said Clifford Sloan, the State Department envoy for Guantanamo closure.

Nonetheless, administration officials say the detention center can’t be closed without sending at least some of the remaining inmates to the U.S. mainland.

Mr. Obama said in his 2014 State of the Union address that “this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay.” The president now expects to miss that deadline, administration officials say, a departure from earlier this summer when White House aides were still saying it was possible.

Mr. Obama’s decision in May to exchange Guantanamo detainees for an American prisoner of war, Sgt. Bowe Bergdahl, without the required 30-day advance congressional notice drew a backlash on the Hill. The start of a U.S.-led fight against the Islamic State militant group has similarly overshadowed any appetite for a repeal of the ban.

A Gallup poll released in June said 29% of Americans support closing the detention center at Guantanamo Bay and transferring detainees to U.S. prisons, while 66% oppose the idea.

Most of the nearly 800 men held at Guantanamo since it opened in 2002 were released during the George W. Bush administration. Of the 149 who remain, 79 have been approved for transfer by national-security officials but remain because of political or diplomatic obstacles in repatriating them.

Another 37 have been designated for continued detention without trial. These are men considered too dangerous to release, yet against whom the government lacks usable evidence. A further 23 have been referred for prosecution by military commission, where 10 detainees, including Khalid Sheikh Mohammed and four co-defendants accused of orchestrating the Sept. 11 attacks, are in pretrial hearings.

Officials, who declined to say where detainees might be housed if taken to the mainland, said the U.S. has ample space in its prisons for several dozen high-security prisoners. The administration has reviewed several facilities that could house the remaining detainees, with the military brig at Charleston, S.C., considered the most likely.

Since winning re-election, Mr. Obama has made several moves designed to speed the prison’s closure. He named envoys at the State and Defense Departments to help secure the transfer of detainees to foreign countries. He lifted the administration’s moratorium on sending detainees to Yemen, which counts 58 nationals among those cleared for transfer.

Part of the administration’s strategy for reducing political opposition to lifting the ban on transferring detainees is to whittle the number in Guantanamo to the point where the cost of maintaining the installation is unpalatable. The annual cost per inmate is $2.7 million, in contrast with $78,000 at a supermax prison on the mainland, officials say.

“As the number becomes smaller at Guantanamo, the case for domestic transfers…becomes that much stronger,” a senior administration official said.

Prisoner transfers to foreign countries have slowed this year. A transfer of six Guantanamo Bay prisoners to Uruguay is tied up in that country’s Oct. 26 presidential elections. The current president has agreed to accept the detainees, while his opponent has said he wouldn’t.

Before the swap that led to Sgt. Bergdahl’s release, the administration completed the transfer of 12 detainees, a senior administration official said. No detainees have been transferred since.

The U.S. requires countries to meet certain criteria before allowing them to accept detainees. Countries, for instance, must provide the U.S. with assurances that the detainees won’t return to the battlefield and will be treated humanely. Many of the countries willing to take detainees are European, including France, Germany, Spain, Portugal, Latvia and Slovakia. But there are a growing number in South and Latin America.

From Inside Prison, a Terrorism Suspect Shares His Diary‘Guantánamo Diary’ by Mohamedou Ould SlahiNYTJAN. 25, 2015Books of The Times

By SCOTT SHANE

There’s a revealing moment in Mohamedou Ould Slahi’s gripping and depressing “Guantánamo Diary” when a new interrogator is assigned to question him. By this point, Mr. Slahi has been asked the same questions and given the same answers for years. But the new military interrogator, a woman he describes as “quiet and polite,” surprises him with a novel inquiry about what he knows of another terrorism suspect’s travel to Iraq in 2003.

The problem, as Mr. Slahi gently points out to his questioner, is that he has been locked up since 2001 and held at the military prison in Guantánamo Bay, Cuba, since 2002, so there is no chance that he could have such information. The interrogator smiles and explains that she asked anyway, because “I have the question in my request” from her bosses.

Much of the attention accorded to Mr. Slahi’s extraordinary memoir has justifiably gone to his excruciating account of his suffering during a “special interrogation” that lasted for months in 2003 and was personally approved by Donald H. Rumsfeld, then the secretary of defense. By Mr. Slahi’s account, which is corroborated by multiple government investigations, his treatment involved extended sleep deprivation, loud music, shackling for days in a freezing cell, dousing with ice water, beatings, threats that he could be made to disappear and that his mother would be arrested and gang-raped.Photo

But another overwhelming impression from his book, published after a seven-year legal battle and with heavy redactions from military censors, is of the woeful incompetence of some of the government’s efforts to keep the country safe from terrorism. That is no surprise to students of bureaucracy. When it comes to the military and intelligence agencies, however, secrecy makes blunders far easier to hide, and outspoken foes of big government give it a pass as soon as fears of terrorism are invoked.

The torture methods approved for Mr. Slahi, for instance, mimicked those used by America’s Communist adversaries in the Cold War, which were famous for producing false confessions. Predictably, Mr. Slahi describes how, desperate to stop the brutal treatment, he finally decided to tell the interrogators whatever he thought they wanted to hear, fabricating plots and implicating others in nonexistent crimes. Some interrogators, though, doubted his confessions and asked for a polygraph test. He denied plotting terrorism or supporting Al Qaeda, and the test results variously showed “no deception” or “no opinion,” undermining his supposed admissions.

Even the book’s redactions are a tedious reminder of the government’s frequent haplessness. Much black ink was expended, for instance, to try to keep readers from learning that some of Mr. Slahi’s Guantánamo interrogators were women. Why the censors decided their gender should be secret is anybody’s guess. Still, they missed enough feminine pronouns that their efforts at cover-up were undone.

Another dubious redaction draws a rare outburst of sarcasm from Larry Siems, who edited the book and lays out the facts of Mr. Slahi’s case dispassionately in his introduction and many footnotes. When a guard tells him not to worry because he’ll soon be home with his family, Mr. Slahi writes, “I couldn’t help breaking in [redacted].” Mr. Siems comments in a footnote, “It seems possible, if incredible, that the U.S. government may have here redacted the word ‘tears.’ ”

To be sure, Mr. Slahi’s pre-Guantánamo résumé cried out for scrutiny, especially after the Sept. 11, 2001, attacks. Born in Mauritania, he had joined Al Qaeda in 1990 to fight Afghanistan’s Communist government alongside Osama bin Laden. A cousin, also Mr. Slahi’s brother-in-law, was an aide to Bin Laden. In Germany, Mr. Slahi had once crossed paths with Ramzi bin al-Shibh, later a planner of the Sept. 11 attacks. Mr. Slahi had lived in Montreal and prayed at the same mosque as Ahmed Ressam, arrested in 1999 on charges of trying to bring explosives into the United States for the failed “millennium plot.”

Based on that history, the government concluded that Mr. Slahi was a “senior recruiter” for Al Qaeda and for a time, listed him as the most dangerous terrorist at Guantánamo. But it has never formally charged him. Mr. Slahi says he left Al Qaeda in 1992, long before it began to target America. His encounter with Mr. Bin al-Shibh lasted one evening and involved no discussion of anti-American plotting, he claims. And Mr. Ressam had left Montreal before Mr. Slahi arrived, and by his account, they never met.

A federal judge who reviewed Mr. Slahi’s habeas petition in 2010, James Robertson, concluded that the government’s evidence was “so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a criminal prosecution.” The judge said the government’s fear that Mr. Slahi could rejoin Al Qaeda if freed “may indeed be well founded,” but that such concerns did not justify his continued imprisonment. Judge Robertson ordered his release. Despite President Obama’s vow to close the prison, his administration challenged that decision. An appeals court overturned the release order, and Mr. Slahi, now 44, remains in limbo at Guantánamo, where he has been held without trial for more than 12 years.

Mr. Slahi emerges from the pages of his diary, handwritten in 2005, as a curious and generous personality, observant, witty and devout, but by no means fanatical. In the imperfect but vivid English he learned as a fourth language after being sent to Guantánamo, he writes enthusiastically of reading the Bible (several times), “Fermat’s Last Theorem” and “The Catcher in the Rye,” which he says “made me laugh until my stomach hurt.” He came to consider Guantánamo and its staff members his “new home and family,” developing friendships with numerous guards and interrogators, discussing religion, playing chess and watching movies with them. He expresses empathy even for some of his tormentors, saying that “many people in the Army come from poor families, and that’s why the Army sometimes gives them the dirtiest job.”

Though it was written nearly a decade ago, “Guantánamo Diary” arrives at a relevant moment. In his State of the Union address last week, President Obama renewed his pledge to close the Guantánamo prison before leaving office. But the recent attacks in Paris, after the beheadings by militants in Syria, have reignited the anxieties that have kept that prison going for so long.

In such an atmosphere, some Americans may worry: What if Mr. Slahi is simply a clever liar who has successfully hidden his past crimes for 12 years? His book quite effectively undercuts that notion. More important, “Guantánamo Diary” forces us to consider why the United States has set aside the cherished idea that a timely trial is the best way to determine who deserves to be in prison. The overwhelming majority of the remaining 122 detainees have not been charged.

“So has the American democracy passed the test it was subjected to with the 2001 terrorist attacks?” Mr. Slahi asks at the end of his book. “I leave this judgment to the reader,” he adds, noting that “the United States and its people are still facing the dilemma of the Cuban detainees.” Nearly a decade after he wrote those words, the dilemma has not been resolved.

Jury Awards $218.5 Million in Terrorism Case Against Palestinian Groups The Palestinian Authority and the Palestine Liberation Organization were found liable on Monday by a jury in Manhattan for their role in knowingly supporting six terrorist attacks in Israel between 2002 and 2004 in which Americans were killed and injured.The jury in Federal District Court in Manhattan awarded $218.5 million in damages, a number that is automatically tripled to $655.5 million under the special terrorism law under which the case was brought.The verdict ended a decade-long legal battle to hold the Palestinian organizations responsible for the terrorist acts. And while the decision was a huge victory for the dozens of plaintiffs, it also could serve to strengthen the Israeli claim that the supposedly more moderate Palestinian forces are directly tied to terrorism.The financial implications of the verdict for the defendants were not immediately clear. The Palestinian Authority, led by Mahmoud Abbas, had serious financial troubles even before Israel, as punishment for the Palestinians’ move in December to join the International Criminal Court, began withholding more than $100 million a month in tax revenue it collects on the Palestinians’ behalf.The verdict came in the seventh week of a civil trial in which the jury had heard emotional testimony from survivors of suicide bombings and other attacks in Jerusalem, in which a total of 33 people were killed and more than 450 were injured.READ MORE »http://www.nytimes.com/2015/02/24/nyregion/damages-awarded-in-terror-case-against-palestinian-groups.html?emc=edit_na_20150223

The Central Intelligence Agency’s health professionals repeatedly criticized the agency’s post-Sept. 11 interrogation program, but their protests were rebuffed by prominent outside psychologists who lent credibility to the program, according to a sweeping new report.The 542-page report, which examines the involvement of the nation’s psychologists and their largest professional organization, the American Psychological Association, with the harsh interrogation programs of the Bush era, raises repeated questions about the collaboration between psychologists and officials at both the C.I.A. and the Pentagon.Read more »

WASHINGTON — Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.

Stretching sparse precedents, the lawyers worked in intense secrecy. Fearing leaks, the White House would not let them consult aides or even the administration’s top lawyer, Attorney General Eric H. Holder Jr. They did their own research, wrote memos on highly secure laptops and traded drafts hand-delivered by trusted couriers.

Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.

While the Bin Laden operation has been much scrutinized, the story of how a tiny team of government lawyers helped shape and justify Mr. Obama’s high-stakes decision has not been previously told. The group worked as military and intelligence officials conducted a parallel effort to explore options and prepare members of SEAL Team 6 for the possible mission.

The legal analysis offered the administration wide flexibility to send ground forces onto Pakistani soil without the country’s consent, to explicitly authorize a lethal mission, to delay telling Congress until afterward, and to bury a wartime enemy at sea. By the end, one official said, the lawyers concluded that there was “clear and ample authority for the use of lethal force under U.S. and international law.”

Some legal scholars later raised objections, but criticism was muted after the successful operation. The administration lawyers, however, did not know at the time how events would play out, and they faced the “unenviable task” of “resolving a cluster of sensitive legal issues without any consultation with colleagues,” said Robert M. Chesney, a law professor at the University of Texas at Austin who worked on a Justice Department detainee policy task force in 2009.

“The proposed raid required answers to many hard legal questions, some of which were entirely novel despite a decade’s worth of conflict with Al Qaeda,” Mr. Chesney said.

This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid. While outlines of some of the government’s rationales have been mentioned previously, the officials provided new insights and details about the analysis and decision-making process.

The officials described the secret legal deliberations and memos for a forthcoming book on national security legal policy under Mr. Obama. Most spoke on the condition of anonymity because the talks were confidential.

‘The Biggest Secret’

“I am about to read you into the biggest secret in Washington,” Michael G. Vickers, the under secretary of defense for intelligence, told Mr. Johnson.

It was March 24, 2011, about five weeks before the raid. Not long before, officials said, Mr. Preston and Ms. DeRosa had visited the Pentagon to meet with Mr. Johnson and Admiral Crawford, the nation’s two top military lawyers. The visitors posed what they said was a hypothetical question: “Suppose we found a very high-value target. What issues would be raised?”

One was where to take him if captured. Mr. Johnson said he would suggest the Guantánamo Bay prison, making an exception to Mr. Obama’s policy of not bringing new detainees there.

But the conversation was necessarily vague. The Pentagon lawyers needed to know the secret if they were going to help, Mr. Preston told Ms. DeRosa afterward.

By then, the two of them had known for over six months that the C.I.A. thought it might have found Bin Laden’s hiding place: a compound in Abbottabad, a military town in northeastern Pakistan. Policy makers initially focused on trying to get more intelligence about who was inside. By the spring of 2011, they turned to possible courses of action, raising legal issues; Thomas E. Donilon, national security adviser to Mr. Obama, then allowed the two military lawyers to be briefed.

One proposal Mr. Obama considered, as previously reported, was to destroy the compound with bombs capable of taking out any tunnels beneath. That would kill dozens of civilians in the neighborhood. But, the officials disclosed, the lawyers were prepared to deem significant collateral damage as lawful, given the circumstances. Still, the Obama team’s examination of the legal factors were intertwined with policy concerns about the wisdom of that option, Mr. Donilon said.

“Not only would there be noncombatants at the compound killed, there could be completely innocent people. That was a key factor in the decision” not to bomb it, he said, adding that the likely impossibility of verifying afterward that Bin Laden had been killed would have heightened controversy over bystander casualties. “All it would have bought us was a propaganda fight.”

Mr. Preston delivered a cabinet-level briefing on April 12, and as the National Security Council deliberated over that and two other options — a more surgical drone strike, which might miss, or a raid by American forces, which carried its own risks — a few other lawyers were eventually told the secret. But the White House kept senior lawyers at the Justice and State Departments in the dark.

On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.

But Mr. Donilon decided that there was no need for the attorney general to know. Mr. Holder was briefed the day before the raid, long after the legal questions had been resolved.

As they worked out their reasoning, the four lawyers conferred in secure conference calls and stopped by Ms. DeRosa’s office after unrelated meetings. They gave no hint to colleagues that anything was afoot. Then, as the possible date for a raid neared, Mr. Preston grew tense and proposed writing the memos.

Mr. Johnson wrote one on violating Pakistani sovereignty. When two countries are not at war, international law generally forbids one from using force on the other’s soil without consent. That appeared to require that the United States ask the Pakistani government to arrest Bin Laden itself or to authorize an American raid. But the administration feared that the Pakistani intelligence service might have sanctioned Bin Laden’s presence; if so, the reasoning went, asking for Pakistan’s help might enable his escape.

The lawyers decided that a unilateral military incursion would be lawful because of a disputed exception to sovereignty for situations in which a government is “unwilling or unable” to suppress a threat to others emanating from its soil.

Invoking this exception was a legal stretch, for two reasons. Many countries have not accepted its legitimacy. And there was no precedent for applying it to a situation in which the United States did not first ask Pakistan, which had helped with or granted consent for other counterterrorism operations. But given fears of a tip-off, the lawyers signed off on invoking the exception.

There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.

If the SEALs got Bin Laden, the Obama administration would lift the secrecy and trumpet the accomplishment. But if it turned out that the founder and head of Al Qaeda was not there, some officials thought the SEALs might be able to slip back out, allowing the United States to pretend the raid never happened.

Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.

The lawyers also grappled with whether it was lawful for the SEAL team to go in intending to kill Bin Laden as its default option. They agreed that it would be legal, in a memo written by Ms. DeRosa, and Mr. Obama later explicitly ordered a kill mission, officials said. The SEAL team expected to face resistance and would go in shooting, relying on the congressional authorization to use military force against perpetrators of the Sept. 11 terrorist attacks.

The law of war required acceptance of any surrender offer that was feasible to accept, the lawyers cautioned. But they also knew that military rules of engagement in such a situation narrowly define what would count. They discussed possible situations in which it might still be lawful to shoot Bin Laden even if he appeared to be surrendering — for instance, if militants next to him were firing weapons, or if he could be concealing a suicide vest under his clothing, officials said.

Matt Bissonnette, one of the SEALs who participated in the raid, recalled in his 2012 memoir, “No Easy Day,” that during their preparations, a Washington lawyer told them, “If he is naked with his hands up, you’re not going to engage him.” Mr. Bissonnette and Robert O’Neill, who also joined in the raid, disagree about who fired the fatal shot at Bin Laden. But on a key point they concur: In Bin Laden’s final moments, he neither resisted nor surrendered.

Ms. DeRosa wrote a memo on plans for detaining Bin Laden in the event of his capture. But in a sign of how little expectation there was for his survival, the administration made no hard decisions. The plan was to take him to the brig of a naval ship for interrogation and then figure out how to proceed. The lawyers also considered writing a memo describing their earlier analysis about what to do with any other living prisoners taken out of the compound, but did not write it because the final plan did not call for the SEALs to leave with anyone else.

No Shrines

The final legal question had been whether the United States, to avoid creating a potential Islamist shrine, could bury Bin Laden at sea.

The Geneva Conventions call for burying enemies slain in battle, “if possible,” in accordance with their religion — which for Muslims means swift interment in soil, facing Mecca — and in marked graves. Still, some Islamic writings permit burial at sea during voyages. The burial memo, handled by Admiral Crawford, focused on that exception; ultimately, burial at sea is religiously acceptable if necessary, and is not a desecration, it said.

The lawyers decided that Saudi Arabia, Bin Laden’s home, must be asked whether it wanted his remains. If not, burial at sea would be permissible. As expected, the Saudis declined, officials said.

On Sunday, May 1, the day of the raid, Mr. Johnson rose early, planted impatiens in his yard, put on a sport coat and told his wife he had to go to the office. First, he took communion at his Episcopal church. Admiral Crawford attended Mass at his Catholic parish. He and Mr. Johnson converged at a Pentagon operations center.

Mr. Preston packed a toothbrush and a change of clothes so he could stay overnight at C.I.A. headquarters if the operation went awry. He joined Mr. Panetta in the director’s conference room, then doubling as a command center. Ms. DeRosa came to the White House.

As the SEALs arrived at the compound in Pakistan, Mr. Obama went into a small anteroom off the Situation Room to watch a live video feed. Most of his senior team followed him, as depicted in a famous photo. The four lawyers who had helped clear the way for the operation were not in the frame.

Edited version of an article originally published under the title "Will Hassan Undermine Domestic Intelligence?"

Syed Farhaj Hassan, the lead plaintiff in a lawsuit alleging that NYPD conducted illegal surveillance of New Jersey Muslims, at a June 2012 news conference.

The political struggle over the right balance between protecting the public and avoiding undue intrusion into private lives has taken a detour through the courts. Last month, a federal appeals court reinstated a complaint against the New York City Police Department in a decision with repercussions for the federal government's domestic intelligence apparatus. If the court's decision stands, it may make it harder for the government to prevent trouble by looking for extremists who act under a religious ideology, like Islamists.

During the 1990s, when journalist Steve Emerson began investigating Islamist groups in the United States – whose leaders exhorted their members to wage jihad to "destroy the West" and "kill the Jews" – he contacted FBI officials and asked whether they knew what was going on. He was astonished to discover that they didn't. Even if they had known, they told him, there was little they could do about it "owing to the FBI's mandate to surveil criminal activity and not simply hateful rhetoric," as Emerson writes in his book American Jihad.

The ability of federal agencies to gather domestic intelligence was sharply curtailed in the 1970s.

That is because back in the 1970s, in the aftermath of the Church Committee's revelations about FBI spying on political protestors like Martin Luther King, Jr., Joan Baez, Jane Fonda, and many others, the ability of federal agencies to gather domestic intelligence was sharply curtailed.

After 9/11, the limits on domestic surveillance were relaxed. The federal government once again authorized the FBI and other federal agencies, like the NSA, to gather information about US citizens and foreign nationals within the United States.

After 9/11, the limits on domestic surveillance were relaxed.

Others got into the game as well. Following the deaths of 2,600 people in the World Trade Center, the New York Police Department began its own surveillance program. Reportedly, police made undercover visits to mosques, monitored sermons, and "assembled databases on where Muslims lived, shopped, worked and prayed" as part of the program. The program came to light in August 2011 as a result of an Associated Press investigation and was subsequently scrapped in April 2014.

In 2012, a group of Muslim individuals and organizations filed suit in New Jersey federal court alleging that the City of New York violated their rights under the Equal Protection, Free Exercise of Religion, and Establishment Clauses by the NYPD's investigative activities, some of which (allegedly) occurred in New Jersey. The plaintiffs did not claim that the police tapped their phones, read their mail, or did anything other than obtain publicly available information. Nevertheless, title plaintiff Syed Hassan and the others claimed that police used their Muslim religious identity as a "permissible proxy for criminality" and caused them harm by stigmatizing them. The court dismissed the lawsuit on February 20, 2014.

The plaintiffs claim that police used their Muslim religious identity as a "permissible proxy for criminality."

The plaintiffs appealed the dismissal. On October 13, 2015, the US Court of Appeals for the Third Circuit reversed the lower court's decision and reinstated the claim. The appellate court held that the lower court was wrong to conclude the plaintiffs lacked standing to sue. Under the Third Circuit's analysis, the plaintiffs had suffered an injury from the alleged police activities, and the injury would likely be redressed – in other words, the problem would be fixed – if they won the suit.

In reaching this result, the Third Circuit held that subjecting individuals to government surveillance based solely on their religion, as plaintiffs claimed, was enough to state an injury. (At this stage, the question isn't whether the plaintiffs have proven their claims, just whether their claims are enough to get them into court.)

The Third Circuit also concluded that the lower court should have held the government to a higher standard in deciding whether its actions were proper. The lower court had applied a rational basis test, meaning the government's actions would pass muster under a showing that they were rationally related to a legitimate governmental objective. As the appeals court noted, courts generally place the burden on the challenger to show that the government's actions are not rationally related to a legitimate goal. Plaintiffs' claim of religious discrimination was entitled to a less deferential standard, the higher court held.

The majority decision failed to clarify what standard the lower court should apply.

Unfortunately, as Judge Roth's concurring opinion noted, the majority decision failed to clarify what standard the lower court should apply. Is it intermediate scrutiny, as the courts apply to claims of gender discrimination, or strict scrutiny, which is applied to claims of racial discrimination? Roth favors intermediate scrutiny, which means the government's actions must be "substantially" related to an "important" governmental objective. If the court were to apply strict scrutiny, the government would have to show that its actions were "narrowly tailored" to a "compelling" governmental objective.

The court's decision means that the case will be sent back to the trial court and plaintiffs will have the opportunity to prove their claims in court – unless the decision is appealed and the Supreme Court agrees to hear the case or unless the full panel of all Third Circuit judges decides to rehear the case; the recent decision was made by the normal three-judge panel.

For those keeping a scorecard, here are some things to watch:

• Will the City of New York seek a rehearing from the full Third Circuit panel? If not, will it appeal to the Supreme Court and, if it does, will the high court accept the case? If an appeal is filed, it will also be worth noting whether the United States Department of Justice weighs in. President Obama isn't exactly reputed to have the back of either police or the national security apparatus. But maybe for just that reason, he'll feel compelled at least to act as if he wants to support them.

• If and when the case returns to the trial court, it's a safe bet that the court/jury will uphold the governmental objective of preventing another terrorist attack as satisfying any standard. The tougher questions will be whether the plaintiffs can show they were targeted purely because of their religion, and if so, whether the police actions were sufficiently tailored. The case could very well be decided by the court's decision of which standard to apply.

• Will the Third Circuit's holding, that being singled out for intelligence-gathering constitutes an injury (at least, if the singling out is based on a religious classification), hold up? If so, what repercussions will this have for domestic intelligence gathering? In essence, will police, the FBI, the NSA, etc., have to satisfy something like a warrant standard just to open an investigation – even information that may be collected without a search requiring a warrant?

The scope of domestic intelligence – spying – has been a highly charged, politically divisive issue since well before Edward Snowden made his revelations. The most heartfelt part of Judge Ambro's Third Circuit opinion was his analogy of the Hassan complaint to the imprisonment of Japanese-Americans in concentration camps during World War II, and spying on "Jewish-Americans during the Red Scare, [and] African-Americans during the Civil Rights Movement."

The court has made it harder for government to track violent movements that use religion as their organizing principle.

Unfortunately, in an attempt to prevent governmental overreaction, the court has also made it harder for the government to react against a violent movement that uses religion as its organizing principle. And it has done so by saying that merely attending events open to the public and observing publicly-available information within a community that Islamists claim as their own can be a constitutional violation.

Part of the problem here is that political leaders (see, e.g., here, here, here, here, here, and here) and outspoken, supposedly representative Muslim groups like the Council on American-Islamic Relations (CAIR) (e.g., here, here, here, and here) have repeatedly denied any link between Islam and the violence and totalitarian nature of groups like al Qaeda and ISIS and their followers. More specifically, they have actively worked to obscure the relationship between Islam and Islamism – and therefore, have obscured how the two are different. Investigators charged with public safety have been left to figure this out for themselves, and now are being rewarded for their efforts by being exposed to a lawsuit.

"Reasonable minds can disagree about whether providing the 9/11 victims and their families with a meaningful civil remedy against Saudi Arabia, if the allegations are true, is worth that cost. But ... the version of JASTA that passed the Senate (and, it now seems, the House) is the worst of both worlds...".